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November 2016

17 November 2016

I am delighted to present a guest blog by Gillian MacNeil and Ayodele Akenroye. Gillian is the lead co-author of the state immunity chapter of both editions of International & Transnational Criminal Law, and is currently a Ph.D. candidate at the Queen's University Faculty of Law. Ayodele is a Ph.D. candidate at the McGill Faculty of Law. Both are attending the 15th Annual Meeting of the Assembly of States Parties (ASP) of the International Criminal Court, which is under way right now in The Hague.

Both of today's guest authors are attending the ASP meeting under the auspices of a brand-new multi-partner project entitled "Strengthening Justice for International Crimes: A Canadian Partnership." Funded by the Social Sciences and Humanities Research Council of Canada (SSHRC), this project is a partnership of leading Canadian international criminal justice scholars and their universities, as well as a number of civil society organizations like the Canadian Centre for International Justice and the Coalition for the International Criminal Court. With $2.5 million in funds over 5 years, this project seeks to advance Canadian knowledge and capacity in the fields of international and transnational criminal justice. I am very pleased to say that, with the support of the Schulich School of Law, I am a co-investigator on the project.

This project will, among many other things, enable students at Canadian law schools to be engaged in research, attend conferences and otherwise build their own knowledge and capacities in the field, all the while contributing to our work. Our very first effort has been to fund a group of students to attend the ASP meeting, all of whom are blogging, Tweeting (live or otherwise), collecting and publishing observations about the proceedings. That is the background of this very interesting article by Gillian and Ayodele.

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ASP 15: The International Criminal Court--Challenges and Opportunities

by Gillian MacNeil and Ayodele Akenroye

Between 16 to 24 November 2016, the Assembly of States Parties (ASP) of the International Criminal Court (ICC) consisting of 124 member States are meeting at the World Forum in The Hague for the Assembly’s 15th annual session. In thinking about the ICC, it is tempting to focus on the Court itself, or perhaps specific organs like the Office of the Prosecutor or the Judges or even the Trust Fund for Victims. However, the ASP is an integral part of the ICC’s structure; it is the Court’s governing body.

By some measures, the annual session will be taking place against a background of increasing successes by the Court; it has ten active investigations, nine cases in pretrial, five at the trial stage, one on appeal and three at the reparations stage. In the last year, it also recorded landmark convictions for sexual offences and destruction of cultural heritage.

However, those successes exist alongside some very real challenges. In this post we will use the recent notifications of withdrawal by South Africa, Burundi and The Gambia as a starting point for highlighting some of the issues facing the Court. The ICC is an important institution; one of its stated goals is to end impunity for international crimes and achieve justice for victims. But the communication from South Africa raised a number of concerns about the Court and linked some of those concerns to the Court’s credibility. If the ICC is to fulfill its goal, the active engagement of the ASP and the various member States in affirming and reinforcing the credibility of the Court, and addressing perceptions about its credibility, is required.

On 19 October 2016, South Africa communicated its withdrawal from the ICC. Burundi communicated its withdrawal on 27 October 2016. The Gambia followed with its withdrawal on 10 November 2016.

The South African official communication announcing its withdrawal contains a number of reasons for that withdrawal. In this post, we will offer comments on two of the reasons articulated in the communication:

that there is a perception that the ICC is focussed on Africa while failing to investigate offences occurring on the territories of non-African states; and

that there is a potential that South Africa’s obligations as a party to the Rome Statute and a member of the African Union may conflict and there is no satisfactory mechanism to resolve those potential conflicts.

Even cursory consideration reveals that these concerns have no easy answers. The ICC cannot necessarily address all situations of mass atrocity – there is a limit to its resources and jurisdiction. Unless the Security Council refers a situation, the ICC has jurisdiction only over crimes committed in the territories of States Parties to the Rome Statute or which are committed by nationals of State Parties to the Rome Statute. Some of the atrocities which are currently, deservedly, receiving a great deal of global attention are occurring on the territory of States which are not States Parties to the Rome Statute. Nationals of some States Parties may be involved in conflicts in which atrocities are occurring and, arguably, that could provide a basis for the Court to become involved. However, there are at least two significant hurdles. First, the Court operates on the principle of complementarity. The structure of the Rome Statute indicates that States have the primary obligation to investigate alleged crimes and submit cases to their own courts for prosecution when warranted. It is the States Parties which have the first duty to investigate and prosecute their citizens. Second, even if the Court were to investigate crimes alleged to have been committed by the national of a State Party, the Rome Statute does not suggest the Court could use that as a mechanism to investigate all the crimes committed in a situation which is not otherwise within the Court’s jurisdiction.

This of course does not answer the critique that there is a perception that the ICC has been (too) focussed on Africa. Of the ten situations currently under investigation, nine are in Africa. Of those, two were UN Security Council referrals (Libya and Sudan), five were referred to the Court by the States on whose territories the atrocities were being committed and one was the result of a State (Côte d’Ivoire) accepting the jurisdiction of the Court. In other words, in six of those nine African cases, the ICC is present at the invitation of the national governments. Of the ten situations which are currently in the preliminary examination phase, four are in Africa. However, the critique speaks of perceptions, and the ASP and Member States may be able to take steps to address those perceptions. Already the Secretary General of the United Nations - Ban Ki-moon and the President of the ASP - H.E. Mr. Sidiki Kaba - have both released statements supporting the Court in the face of the notifications of withdrawal by South Africa (see here) and Burundi (see here). The ASP and individual Member States can build on these affirmations and potentially use the 15th ASP as a forum to find ways to address the perception, clear in the South African communication, that the Court’s credibility has been damaged. As an essentially diplomatic task, it is also something which can be done outside the formal bounds of the annual session.

Like the question of perceptions, the issue of competing obligations is complex and we cannot address all the facets of that issue. Our observations will focus on the possibility that competing obligations will become problems of non-cooperation and the important role played by the ASP when a situation of non-cooperation is identified.

It is a basic principle of international law that parties to a treaty are to fulfill their obligations in good faith. Article 86 of the Rome Statute also imposes a specific obligation on Member States to cooperate with the Court in investigating and prosecution crimes within the Court’s jurisdiction.

But the Court has no ability to compel states to cooperate. Article 87(1) of the Rome Statute gives the Court authority to make requests for cooperation to States Parties and to invite cooperation from non-Parties. If a State Party fails to cooperate, the Court may make a finding of non-cooperation and refer the non-cooperation to the ASP or to the Security Council if the non-cooperation relates to a situation referred to the Court by the Security Council (Article 87(7)). So far, the ICC has made over ten findings of non-cooperation. As our focus here is on the ICC and the ASP, we will not comment on the range of responses open to the United Nations Security Council.

In 2011, the ASP adopted procedures relating to non-cooperation. The procedures are intended to apply to two types of non-cooperation: situations involving findings of non-cooperation by the Court and situations in which no formal finding has been referred to the ASP “but there are reasons to believe that a specific and serious incident of non-cooperation in respect of a request for arrest and surrender of a person...is about to occur or is currently ongoing and urgent action by the Assembly may help bring about cooperation.” The procedures document outlines a number of potential responses: some are informal, such as using the good offices of the ASP President. Others contemplate more formal actions such as open letters from the ASP President on behalf of the relevant ASP organ (the Bureau on Non-Cooperation) to the state concerned with copies to all States Parties, bilateral engagement by States Parties, reports by the Bureau to the Assembly, discussion of such reports during the Annual Session and possible use of Bureau resources to prepare a draft resolution containing concrete recommendations. To date, the procedures adopted have not resolved the issue of non-cooperation. The 2015 Report by the Bureau on Non-Cooperation makes it clear that non-cooperation by States Parties, and non-parties, remains an issue. However, the Report also makes it clear that the ASP and Member States remain engaged in efforts to encourage cooperation and continue to develop measures to prevent and address non-cooperation.

What we hope our brief discussion has highlighted is that importance of the Member States and the ASP in helping to ensure the ICC is able to fulfill its mandate.